Luttig: "I write the law" Law and Policy: The Lie Lawyers Can't Stop Telling Themselves - G.S. Hans - Balls & Strikes

The most prominent current example of the lie lawyers tell themselves: that they follow the law, not their personal political, moral, or other preference is former Judge J. Michael Luttig's interview/podcast with Ryan Lizza about his advice to Mike Pence that his only role on January 6 is arithmetic: Count the votes.

His dismissal of his former clerk John Eastman is cast as humble heroism.  "I write the law" says Luttig who speaks with Bill Barr daily, and who figured that the only uncertainty about who would replace Jeff Sessions - was himself or Barr as they batted it around.  But Luttig's wife nixed it and Barr pursued it, so inside baseball...

But "I write the law" is blind ignorance or hypocrisy.  We have been exploring what to make of the phrase due process of the law since 1215 at Runnymede.  To say "I write that law" as if it were simple fealty to 2+2 in base 10 is to deceive either yourself or your listeners.

The law is both found and created.  Even the Second Amendment right to bear arms has a pedigree: during Reconstruction the new African American citizens armed themselves for self defense as well as for food.  The Heller declaration of a personal right - grounded in contemporary dictionary definitions - is a policy choice: the right has been recognized in our history, then narrowly understood to link it to the need for State militia.  It is an assessment of where the public good lies that drives how we think the fundamental right of self defense can be served.

= GWC

Law and Policy: The Lie Lawyers Can't Stop Telling Themselves

Balls & Strikes
Judges love to talk about “law” as distinct from “policy.” It’s not.
LEGAL CULTURE
BY G.S. HANS  (Vanderbilt Law) JANUARY 25, 2022


This month’s chaotic Supreme Court arguments on the Biden administration’s workplace COVID-19 vaccination rules were typical of this 6-3 conservative supermajority: the usual mix of overlong hypotheticals, ahistorical musings, and overt hostility to the executive branch. But one brief comment from Justice Brett Kavanaugh also revealed much about the stories attorneys and judges tell themselves about the role and status of “law” as privileged above everything else.

Kavanaugh spoke after Justices Elena Kagan and Neil Gorsuch, who had just asked questions about the scope of administrative law and the slippery “major questions” doctrine, respectively. “I want to follow up on Justice Gorsuch’s questions, which I think are important, and also Justice Kagan’s questions about the policy arguments that are present here,” Kavanaugh mused. His comment tellingly blessed Gorsuch’s “important” legal questions over Kagan’s mere inquiries into “policy” (while ignoring that both justices were actually asking similar questions).

This sounds all too familiar to those of us who’ve survived the law school experience, in which faculty and peers may dismiss some students’ perfectly valid points as mere “policy arguments.” For law students, the answer to a “cold-call” of the type seen in Legally Blonde “should” be grounded in the case or statute at issue rather than larger concerns like justice, morals, or equality. Students learn fast that, if you care about the equity goals of the Voting Rights Act or the repercussions of artificially cramped standing doctrine, you better have something more than “policy” to justify your arguments.

Many lawyers, law professors, and judges treat policy as basically just vibes: emotions and feelings dressed up in rhetoric. Law, by contrast, is Solid, Determinate, and Consistent: an elegant edifice, chiseled and crafted by all-knowing judges and learned attorneys. There might be harsh results or perverse incentives, sure, but that’s the price to pay for stability. Indeed, a lack of concern for squishy values like “justice” proves the higher meaning and value of law—there’s no room for maneuvering.

There are (at least) two problems with this view. First, it creates an artificial distinction between law and policy, casting them as disparate arenas rather than inextricably intertwined. Second and more insidiously, it creates a hierarchy in which law reigns supreme over subjective and “imprecise” disciplines like policy, which can too closely resemble feelings in its concern for non-legal considerations. When lawyers and judges assert that law trumps other concerns, they implicitly subordinate those who claim allegiance to other values or disciplines. You’re either on our team, or you’re a loser.